Congress should pass the federal shield law for journalists, bloggers

If not for Katharine Graham's sheer courage, Watergate might have been dismissed as a "phony scandal." (AP File)

It is vague, clumsy and poorly written -- and it protects us more than you may think.

There has never been a more appropriate time than now for legislators to protect the American public by passing The "Free Flow of Information Act", a federal Shield Law for investigative journalism.

Between the breathtaking scope of the NSA spying on citizens, the wholesale pilfering of records from the Associated Press and Fox News (and others we may not even know about), and the unprecedented string of legal actions brought against whistleblowers and reporters, a recent Pew Research poll indicates that only 26% of the nation trusts the federal government. We're talking numbers lower than Nixon.

Investigative journalism protects the public because it allows independent and unfettered examination of facts and documents that the public needs to know about in order to make informed political and life-altering decisions.

This is the motive force of the First Amendment: Examining truth brings legitimate social change. If not for Katharine Graham's sheer courage, Watergate might have been dismissed as a "phony scandal."

The "phony scandal" meme has been trotted out a lot lately, from no less a bully pulpit than the White House and some of its faithful followers. (Silvio Berlusconi called his scandals "politically motivated fabrications" as well. Congressman William Jefferson and Virginia Gov. Bob McDonnell made similar noises until the truth willed out).

The right to call a scandal "phony" doesn't belong to a government actor: It belongs to a free and unfettered press with the capacity to investigate facts. But this administration's suppression of a free and unfettered press is killing that capacity.

Between spying on some reporters, and subjecting others, like James Rosen, to endless litigation and the scorched-earth prosecution of whistleblowers, "news sources are terrified now," Lucy Dalglish, the dean of the University of Maryland journalism school and formerly the executive director of the Reporters Committee for Freedom of the Press told the New York Times.

"What bothers me the most is knowing that some of the really important stories in the recent past probably couldn't be done now," she said.

Some of the public debate about the two versions of the Shield Law before the House and Senate committees centers on defining who would be covered by the proposed law.

The Electronic Frontier Foundation quite fairly raises concerns that the law may not cover bloggers or those who are not part of the "traditional" media. It's a fair point, but not entirely accurate.

The House bill extends protection of sources for anyone "who, for financial gain or livelihood, is engaged in journalism." Note that "financial gain" is not qualified (as it was in earlier versions of the bill) by words such as "sizeable" or "substantial."

A plain reading of the text means that any revenue at all, such as a $5 PayPal donation or a $1 check from Google for an AdWords metatag qualifies a blogger for protection.

The Senate text also has constructive vagueness through which bloggers may pass. In relevant part, it extends protection to one who "regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes [on matters of public concern.]"

The word regularly modifies the gathering and preparation of news, not publication, and the word "regularly" is itself so susceptible to varied interpretation that a blogger who makes more than one phone call, or reads more than one document has "regularly" been acting as a journalist.

Philosophically, the EFF is correct that it is the act of journalism, not the government-approved nature of a journalist that should be protected. Senator Feinstein's unfortunate proposal that the protection should be applied just to "real reporters" is misguided.

This parochialism is predicated on a lack of understanding today's media landscape, where many non-traditional and web-based investigative outfits such as ProPublica, the Center for Public Integrity and Global Integrity are exploring citizen journalism, favor neither left- nor right-leaning politics and have produced important stories in the public interest.

The holds true even for ideologically-driven web journalism such as ThinkProgress.org or Breitbart, each of whom, to the annoyance of their political opponents, has broken important stories of public concern.

Opponents of a Shield Law should be reminded of what neither version of the Law does not do. It does not legislatively overturn Branzburg v. Hayes, and reporters who are eyewitnesses to crimes may still have to provide law enforcement with information in certain circumstances.

Similarly, this is not a "get-out-of-jail card" for Bradley Manning or others who may have violated national security laws. Finally, and to Sen. Feinstein's apparent concern for the quality of "real" journalism, any publisher accused of libel, invasion of privacy or misappropriation may still be held accountable to the applicable standards in civil litigation.

So with all due respect to the President of the United States, I decline to take his word as to what constitutes a "phony" scandal. I'll put more faith in journalists being free to talk to people and read documents without fear of persecution. Then and only then will we better know what scandals are and aren't "phony."

Charles J. Glasser, Jr. served as Global Media Counsel to Bloomberg News for 12 years and was a journalist prior to practicing law. He is currently a consultant on media law and communications issues and can be reached at charlesglasseresq@gmail.com.